Bowles v. Dooley et al

Filing 30

ORDER Dismissing Case and Declining to Issue a Certificate of Appealability. Signed by Chief Judge Jeffrey L. Viken on 3/11/14. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
WADE ELLIOT BOWLES,
Petitioner,
vs.
WARDEN ROBERT DOOLEY;
DARIN YOUNG, Warden, South
Dakota State Penitentiary; and
MARTY JACKLEY, Attorney
General of the State of South
Dakota,
Respondents.

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CIV. 13-5039-JLV

ORDER OF DISMISSAL

On May 20, 2013, petitioner Wade Elliot Bowles, appearing pro so, filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket 1).
Respondents moved to dismiss the petition, alleging Mr. Bowles did not
properly file his petition within the one-year limitation period. (Docket 7). The
case was referred to Magistrate Judge John E. Simko for resolution pursuant
to the standing order of March 18, 2010. On January 7, 2014, Judge Simko
issued a report recommending the court grant respondents’ motion to dismiss
and dismiss Mr. Bowles’ petition with prejudice. (Docket 23 at p. 11). Mr.
Bowles filed a motion for ruling on previous motions,1 motion for appointment
of counsel, and timely filed his objections to the report and recommendation.
(Dockets 25, 28 & 29).
1

Mr. Bowles’ motion (Docket 25) was received on the same day Judge
Simko’s report and recommendation was filed. Judge Simko denied those
earlier motions (Dockets 16 & 19). (Docket 23 at p. 10).

The court reviews de novo those portions of the report and
recommendation which are the subject of objections. Thompson v. Nix, 897
F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(1). For the reasons stated
below, Mr. Bowles’ objections are overruled and the court adopts the report and
recommendation.
DISCUSSION
Section 2254 of Title 28 of the United States Code, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), controls when
a person in state custody pursuant to a state court judgment applies for a writ
of habeas corpus in federal court “on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254. With the enactment of AEDPA, “a state prisoner seeking federal
habeas corpus relief [is required] to file his federal petition within a year after
his state conviction becomes final.” Payne v. Kemna, 441 F.3d 570, 571
(8th Cir. 2006). This one-year statute of limitations is codified in 28 U.S.C.
§ 2244(d)(1) as follows:
A 1-year period of limitation shall apply to an application for a writ
of habeas corpus by a person in custody pursuant to the judgment
of a State court. The limitation period shall run from the latest of-(A)

the date on which the judgment became final by the
conclusion of direct review or the expiration of the time
for seeking such review;

(B)

the date on which the impediment to filing an
application created by State action in violation of the
Constitution or the laws of the United States is removed,
if the applicant was prevented from filing by such State
action;

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(C)

the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right
has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral
review; or

(D)

the date on which the factual predicate of the claim or
claims presented could have been discovered through
the exercise of due diligence.

28 U.S.C. § 2244(d)(1).2
Mr. Bowles’ objections assert the respondents “did not prove” the AEDPA
timely filing requirements were not met. (Docket 29 at p. 1) (emphasis in
original). A judgment or state conviction is final under § 2244(d)(1)(A) at either
“(i) the conclusion of all direct criminal appeals in the state system, followed by
either the completion or denial of certiorari proceedings before the United
States Supreme Court; or (ii) if certiorari was not sought, then by the
conclusion of all direct criminal appeals in the state system followed by the
expiration of the time allotted for filing a petition for the writ.” Smith v.
Bowersox, 159 F.3d 345, 348 (8th Cir. 1998). The time allotted for filing a
petition for writ of certiorari with the United States Supreme Court is ninety
days. Jihad v. Hvass, 267 F.3d 803, 804 (8th Cir. 2001).
Giving Mr. Bowles the benefit of any doubt, the magistrate judge
considered direct review of the state court judgment as final on February 22,
2010, ninety days after the South Dakota Supreme Court entered an order

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Subsections (B), (C) and (D) of § 2244(d)(1) are not relevant to Mr.
Bowles’ petition.
3

dismissing the direct appeal.3 Absent statutory or equitable tolling, Mr. Bowles
had one year, or until February 23, 2011, to file a § 2254 petition in federal
court. See 28 U.S.C. § 2244(d)(1)(A) & (d)(2).
Mr. Bowles’ next state court proceeding did not occur until March 1,
2011, when he filed a motion for reduction of sentence. (Docket 23 at p. 4). By
this time a total of 372 days had expired. Id. “State proceedings are not
pending during the time between the end of direct review and the date an
application for state [post-conviction relief] is filed.” Maghee v. Ault, 410 F.3d
473, 475 (8th Cir. 2005). By March 1, 2011, the one-year statute of limitations
of AEDPA expired. The court finds the one-year statute of limitations of AEDPA
expired on February 23, 2011, unless the doctrine of equitable tolling applies.
“[B]ecause the one-year time limit contained in section 2244(d)(1) is a
statute of limitation rather than a jurisdictional bar, equitable tolling, if
applicable, may apply.” Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir.
2000). Equitable tolling is an extraordinary remedy used only in rare
circumstances and “affords the otherwise time-barred petitioner an exceedingly
narrow window of relief[.]” Jihad, 267 F.3d at 805. “[A]ny invocation of equity
to relieve the strict application of a statute of limitations must be guarded and
infrequent, lest circumstances of individualized hardship supplant the rules of
clearly drafted statutes.” Id. at 806 (citation and internal quotation marks
omitted).

3

The South Dakota Supreme Court entered its order on November 24,
2009. (Docket 23 at p. 4).
4

Equitable tolling is appropriate only when one of two conditions is
present: (1) “extraordinary circumstances beyond a prisoner’s control make it
impossible to file a petition on time,” or (2) “[respondent’s] conduct lulls the
prisoner into inaction.” Maghee, 410 F.3d at 476 (emphasis added). In other
words, a petitioner may be entitled to equitable tolling only when the conduct
of respondents caused the petitioner to be late in filing or when “other
circumstances, external to the [petitioner] and not attributable to his actions,
are responsible for the delay.” Id. (citation and internal quotation marks
omitted); see also Kreutzer, 231 F.3d at 463 (extraordinary circumstances must
be beyond a prisoner’s control).
Mr. Bowles’ objection to Judge Simko’s conclusion on the issue of
equitable tolling boils down to a claim the respondents’ submissions were “a
flat lie.” (Docket 29 at p. 2). Mr. Bowles claims the penitentiary “had no
paralegal to help or get citings [sic] or shepardization to situations nor books or
digest.” Id. Mr. Bowles presented no evidence to either Judge Simko or this
court to support his claim. The court adopts the finding of Judge Simko that
“[t]he legal resources necessary for inmates to research the filing requirements
for federal habeas corpus claims have been available at the [prison library
where Mr. Bowles was housed] . . . since at least Bowles’s admission in 2009.”
(Docket 23 at p. 7).
Mr. Bowles did not object to Judge Simko’s conclusion that “Bowles does
not claim, however that he ever actually tried to research or investigate a
federal habeas claim before the statute of limitations expired.” Id. at p. 5. Nor
did Mr. Bowles object to Judge Simko’s conclusion that “had Bowles merely

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read the § 2254 form (which he does not dispute was at all times available to
him), he could have discerned that he had only one year after his conviction
was final in which to file his federal habeas corpus application.” Id. at p. 9.
The court concludes Mr. Bowles failed to present any evidence to support a
claim for equitable tolling.
The court finds the report and recommendation is an accurate and
thorough recitation of the facts and applicable case law. The court concludes
Mr. Bowles failed to present any evidence to support a claim for equitable
tolling. The court further finds Judge Simko’s legal analysis well reasoned.
Having carefully reviewed the record in this case and good cause appearing, it
is hereby
ORDERED that petitioner’s objections to the report and recommendation
(Docket 29) are overruled.
IT IS FURTHER ORDERED that the report and recommendation (Docket
23) is adopted in full.
IT IS FURTHER ORDERED that respondents’ motion to dismiss (Docket
7) is granted.
IT IS FURTHER ORDERED that petitioner’s motion for a ruling on
previous motions (Docket 25) is denied as moot.
IT IS FURTHER ORDERED that petitioner’s motion to appoint counsel
(Docket 28) is denied.
IT IS FURTHER ORDERED that Mr. Bowles’ petition (Docket 1) is
dismissed with prejudice.

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IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 2253(c) and
Rule 11 of the Rules Governing Section 2254 Cases in the United States
District Courts, the court declines to issue a certificate of appealability. “When
the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a [certificate of
appealability] should issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added) (establishing a
two-prong standard). “Where a plain procedural bar is present and the district
court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the case or that the
petitioner should be allowed to proceed further. In such circumstances, no
appeal would be warranted.” Id. The court does not believe reasonable jurists
would find the court’s ruling debatable or wrong. Accordingly, a certificate of
appealability shall not issue in light of the second prong of the Slack standard.
Although the court declines to issue a certificate of appealability, Mr.
Bowles may timely seek a certificate of appealability from the United States
Court of Appeals for the Eighth Circuit under Fed. R. App. P. 22. See Rule
11(a) of the Rules Governing Section 2254 Cases in the United States District
Courts and Fed. R. App. P. 22.

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IT IS FURTHER RECOMMENDED that Mr. Bowles thoroughly review the
Federal Rules of Appellate Procedure, paying particular attention to Rules 4(a),
22, and 24.
IT IS FURTHER ORDERED that the Clerk of Court shall promptly mail to
Mr. Bowles a copy of the Rules Governing Section 2254 Cases in the United
States District Courts and a copy of the document entitled “Information
Regarding Possible Appeal.”
Dated March 11, 2014.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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